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White paperMichael Clark
The Liability Clock Runs First
The Digital Omnibus moved the AI Act's regulatory clock but not the liability clock: from 9 December 2026 the Product Liability Directive treats AI software, including SaaS, as a product, about a year before the Annex III high-risk rules apply. Disclosure and five rebuttable presumptions make the state of the record a legal question over a ten-year window. Most of the work is governance that can start before 9 December 2026, from a written substantial modification test to retention set against the liability window.
Key findings
- The Digital Omnibus moved the AI Act's regulatory clock, not the liability clock: liability without proof of fault for AI products arrives before the high-risk rules do.
- A defendant that fails to disclose evidence a court has ordered faces a rebuttable presumption that its product was defective (Article 10(2)(a)).
- Under Article 10(4), where disclosure still leaves the claimant facing excessive difficulty, notably technical complexity, and they show likelihood, a court must presume defect, causation or both.
In the paper
- Software is a product, however it is delivered
- Two cases show why the record matters
- Control lasts as long as updates do
- The window is long and the logs are short
- Before the high-risk rules apply
- What to do before 9 December 2026
Michael Clark
Chief Executive Officer, Standard Intelligence
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